Carkeek v. Treasurer of State of Missouri-Custodian of the Second Injury Fund

• Decision Date: 11 October 2011
• Docket Number: No. WD 73377.,WD 73377.
• Parties: Teresa R. CARKEEK, Appellant, v. TREASURER OF the STATE of Missouri–CUSTODIAN OF the SECOND INJURY FUND, Respondent.
• Court: Missouri Court of Appeals

352 S.W.3d 604

Teresa R. CARKEEK, Appellant,

v.TREASURER OF the STATE of Missouri–CUSTODIAN OF the SECOND INJURY FUND, Respondent.

No. WD 73377.

Missouri Court of Appeals, Western District.

Oct. 11, 2011.Motion for Rehearing and/or Transfer to

Supreme Court Denied Nov. 22, 2011.

Mark E. Kelly, Kristi L. Pittman, Liberty, MO, for Appellant.

Andrew J. Dickson, Kansas City, MO, for Respondent.

Before JAMES EDWARD WELSH, P.J., JAMES M. SMART, JR., and JOSEPH M. ELLIS, JJ.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

JAMES EDWARD WELSH, Presiding Judge.

Teresa R. Carkeek appeals the Labor and Industrial Relations Commission's decision denying her claim against the Second Injury Fund for permanent total disability benefits. The Commission found that Carkeek did not prove that either of the injuries she sustained in two different work accidents combined with her preexisting disabilities to render her permanently and totally disabled. Carkeek contends that the Commission's decision was not supported by substantial and competent evidence and that the Commission erroneously applied the law. We disagree and affirm.

In June of 1995, Carkeek began working for Hallmark as a retail order processor. Carkeek's employment consisted of folding cartons, placing labels on them, and taping the cartons in order to fill them with orders. Carkeek then walked around and filled the carton with orders before sealing the box and placing it on the conveyor belt to send it off for shipping.

On June 5, 2006, Carkeek claims that she injured her left shoulder while lifting boxes at work. Carkeek also claims that she injured her neck and upper back by falling into a cart at work on December 13, 2006. Carkeek did not seek any treatment for either of the two alleged work injuries until January 3, 2007.

Carkeek filed claims for compensation against the Second Injury Fund for both the June 5, 2006, and December 13, 2006, work injury. Carkeek alleged that her preexisting disabilities combined with the alleged June 5, 2006, injury rendered her permanently and totally disabled and that her preexisting disabilities combined with the alleged December 13, 2006, injury rendered her permanently and totally disabled.

An administrative law judge (ALJ) held a hearing on this matter on February 1, 2010. Carkeek introduced into evidence numerous medical records outlining her alleged work injuries and her preexisting disabilities. Carkeek presented the deposition testimony of Dr. P. Brent Koprivica, who testified about Carkeek's work injuries and her preexisting disabilities. Koprivica, however, did not make a determination about whether or not Carkeek was permanently and totally disabled. Koprivica said that he would defer to the vocational expert to make that determination. Terry Cordray, a vocational rehabilitation counselor, testified at the hearing. He concluded that Carkeek was permanently and totally disabled and was not employable in the open labor market. On cross-examination, however, Cordray admitted that Carkeek could be “cash register trained.”

The ALJ found that Carkeek did prove that she sustained a job-related accident on December 13, 2006, but that she did not prove that she was rendered permanently and totally disabled as a result of the December 2006 accident even when considered in combination with her preexisting disabilities. As to the June 2006 work accident, the ALJ determined that “the Second Injury Fund is only liable for permanent total disability benefits if the disability from the last injury or accident combines with the preexisting disability to render the employee permanently and totally disabled.” The ALJ reasoned that Carkeek's last accident and injury was not the June 2006 injury, and, therefore, the Second Injury Fund was not liable for permanent total disability benefits. The ALJ further found that Carkeek did not prove that she was rendered permanently and totally disabled as a result of the June 5, 2006, work accident and her preexisting disabilities.

Carkeek filed an application for review with the Commission. The Commission entered separate Findings of Fact and Rulings of Law for each of the two claims. It found that the combination of Carkeek's preexisting disabilities and the December 13, 2006, work injury did not render Carkeek permanently and totally disabled.¹ The Commission did, however, disagree with the ALJ's conclusion that, because the June 5, 2006, injury was not Carkeek's last accident and injury, the Second Injury Fund was not liable for permanent total disability benefits. The Commission said that the ALJ's statements were merely dicta but specifically stated that it did not adopt the ALJ's statements in this regard because it believed that the ALJ had misstated the law. The Commission did, however, affirm and adopt the ALJ's decision that Second Injury Fund was not liable to pay Carkeek permanent total disability benefits due to the June 5, 2006, work accident and her preexisting disabilities.² Carkeek appeals.

Our review of this matter is governed by section 287.495.1, RSMo 2000, which provides, in relevant part:

Upon appeal no additional evidence shall be heard and, in the absence of fraud, the findings of fact made by the commission within its powers shall be conclusive and binding. The court, on appeal, shall review only questions of law and may modify, reverse, remand for rehearing, or set aside the award upon any of the following grounds and no other:

(1) That the commission acted without or in excess of its powers;

(2) That the award was procured by fraud;

(3) That the facts found by the commission do not support the award; or (4) That there was not sufficient competent evidence in the record to warrant the making of the award.

This court reviews the Commission's award to determine whether it is “supported by competent and substantial evidence upon the whole record.” Mo. Const. art. V, sec. 18. An award is supported by competent and substantial evidence unless it is against the overwhelming weight of the evidence. Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 223 (Mo. banc 2003).

“The Second Injury Fund compensates injured workers who are permanently and totally disabled by a combination of past disabilities and a primary work injury.” Concepcion v. Lear Corp., 173 S.W.3d 368, 371 (Mo.App.2005). Section 287.020.6, RSMo Cum Supp.2010, defines the term “total disability” as the “inability to return to any employment and not merely [an] inability to return to the employment in which the employee was engaged at the time of the accident.” The test for permanent total disability is whether the worker is able to compete in the open labor market. ABB Power T & D Co. v. Kempker, 236 S.W.3d 43, 48 (Mo.App.2007). “Total disability means the inability to return to any reasonable or normal employment, it does not require that the employee be completely inactive or inert.” Brown v. Treas. of Mo., 795 S.W.2d 479, 483 (Mo.App.1990). “ ‘Any employment’ means any reasonable or normal employment or occupation.” Mell v. Biebel Bros., Inc., 247 S.W.3d 26, 29 (Mo.App.2008). “The critical question is whether, in the ordinary course of business, any employer reasonably would be expected to hire the injured worker, given his present physical condition.” ABB Power, 236 S.W.3d at 48; see also Molder v. Mo. State Treasurer, 342 S.W.3d 406, 411–13 (Mo.App.2011). Carkeek has the burden to establish permanent total disability by introducing evidence to prove her claim. Clark v. Harts Auto Repair, 274 S.W.3d 612, 616 (Mo.App.2009).

Competent and substantial evidence supports the Commission's determination that the combination of Carkeek's preexisting disabilities and her work injuries (whether it is the June 2006 work accident or the December 2006 work accident or both) did not render her permanently and totally disabled. The Commission determined that Carkeek offered no definitive medical or vocational opinions which supported Carkeek's allegation that the Second Injury Fund was liable for permanent total disability benefits.

Dr. P. Brent Koprivica performed an independent medical evaluation on Carkeek. He found several disabilities that he felt were significant: neck strain from the December 2006 work accident, left shoulder injury from the June 2006 work accident, preexisting lower back impairment, and preexisting deep venous thrombosis issues. Koprivica found that none of these impairments in isolation were sufficient to render Carkeek permanently and totally disabled. When asked whether or not the combination of those four conditions rendered Carkeek permanently and totally disabled, Koprivica said that he had an opinion and that, when...